Before the
FEDERAL AVIATION ADMINISTRATION
Washington, D.C. 20591
In the Matter of )
)
Safe, Efficient Use and Preservation ) Docket No. FAA-2006-25002
of the Navigable Airspace ) Notice No. 06-06
)
To: The Federal Aviation Administration
COMMENTS OF
LAND MOBILE COMMUNICATIONS COUNCIL
The Land Mobile Communications Council (“LMCC”) hereby respectfully submits these Comments in the above-captioned proceeding.[1] LMCC appreciates the Federal Aviation Administration’s (“FAA”) role in ensuring the safe and efficient use of navigable airspace and therefore supports the FAA’s efforts to protect air navigation facilities from impairment. However, LMCC has deep concerns about the breadth of the NPRM, particularly the proposed electromagnetic interference (“EMI”) notice requirements and the proposed EMI obstruction standards.
I. INTRODUCTION
LMCC is a non-profit association of organizations representing virtually all users of land mobile radio systems, providers of land mobile services, and manufacturers of land mobile equipment. LMCC acts with the consensus, and on behalf, of the vast majority of public safety, business, industrial, private commercial and land transportation radio users, as well as a diversity of land mobile service providers and equipment manufacturers. Membership includes the following organizations:
· American Association of State Highway and Transportation Officials (“AASHTO”)
· American Automobile Association (“AAA”)
· American Petroleum Institute (“API”)
· Association of American Railroads (“AAR”)
· Association of Fish and Wildlife Agencies (“AFWA”)
· Association of Public Safety Communications Officials-International, Inc. (“APCO”)
· Aviation Spectrum Resources, Inc. (“ASRI”)
· Central Station Alarm Association (“CSAA”)
· Enterprise Wireless Alliance (“EWA”)
· Forest Industries Telecommunications (“FIT”)
· Forestry-Conservation Communications Association (“FCCA”)
· Intelligent Transportation Society of American, Inc. (“ITSA”)
· International Association of Fire Chiefs (“IAFC”)
· International Municipal Signal Association (“IMSA”)
· Manufacturers Radio Frequency Advisory Committee (“MRFAC”)
· National Association of State Foresters (“NASF”)
· PCIA -- The Wireless Infrastructure Association
· Telecommunications Industry Association (“TIA”)
· United Telecom Council (“UTC”)
Many of the LMCC member organizations have constituents that hold licenses in the very frequency bands on which the FAA proposes to impose new, unprecedented and unwarranted notice requirements. Therefore, LMCC and its members have a keen interest in this proceeding.
II. BACKGROUND
The LMCC has full appreciation for the role played by the FAA in promoting “(1) safety in air commerce; and (2) the efficient use and preservation of the navigational airspace and airport traffic capacity at public-use airports.”[2] This is an important responsibility, particularly during times when concerns about elevated security levels, and the potential use of aircraft to threaten homeland security, is at an appropriately heightened state. However, the LMCC also is concerned that the FAA not assume for itself a role that traditionally has been managed through a collaborative effort between the Federal Communications Commission (“FCC”), on behalf of non-Federal Government spectrum users, and the National Telecommunications and Information Administration (“NTIA”), as representative for Federal Government users of spectrum.
Specifically, the instant NPRM proposes to expand dramatically the FAA’s traditional role of protecting air safety through regulation of physical facilities with the potential for obstructing air traffic. The current FAA rules require notification from parties proposing to construct telecommunications structures that are more than 200 feet tall or ones that are within five miles of an airport and would interfere with the aeronautical glide slope at that airport irrespective of the height of the structure. These notification requirements have been used to protect against physical obstructions to air navigation. They are well-known within the industry and improved coordination between FAA and FCC databases have enhanced the effectiveness of the notification process to promote air safety.
The FAA now wishes to extend its responsibilities to include consideration of EMI effects. The NPRM proposes notification requirements irrespective of the physical properties of the facilities on which a system is proposed to be located. Instead, applications for new and many modified systems in a significant number of spectrum bands would require prior FAA notification and approval. For the reasons described below, the LMCC considers this proposal ill-advised, contrary to effective spectrum management principles, and likely to overwhelm the FAA with a volume of notifications filings for which that agency is unprepared.
III. DISCUSSION
A. Management of EMI is a Shared Responsibility of Multiple Federal Agencies and Would Not be Advanced by the Instant FAA Proposal.
The NPRM sets forth as a basis for this novel interpretation of the FAA’s authority, enactment of the Airport and Airway Safety and Capacity Expansion Act of 1987 that amended the Federal Aviation Act of 1958.[3] In doing so, the NPRM attempts to both define interference and include EMI as a factor triggering notice requirements and obstruction standards. Specifically, the NPRM cites to two references in the legislative history that Congress meant to include EMI as a type of interference to be regulated by the FAA.[4]
Whether Congress intended to include EMI as a factor for determining FAA notice requirements and obstruction standards is unclear in light of the fact that there is no reference to EMI in the legislation that was enacted. More important, however, there already is a system by which the government determines which spectrum bands may be used for what purposes and by which entities. The entire allocation process by which spectrum is made available to Federal or non-Federal entities, as well as the rules that govern the use of that spectrum once allocated for a particular purpose, have as a primary consideration the avoidance of EMI between and among radio services and users. To the extent spectrum bands are shared by Federal and non-Federal users, the FCC and NTIA, pursuant to the coordinating efforts of the Interdepartment Radio Advisory Committee (“IRAC”), already have in place a process by which those uses are coordinated and interference is avoided.
The NPRM fails to address this existing process, much less to identify any perceived deficiencies in its operation. Adoption of the FAA’s proposal would be inconsistent with the current system and has the potential for compromising this long-standing approach to sound spectrum management. It could be read to permit any government agency to establish its own standards for evaluating EMI as it might relate to the facilities operated by that agency, whether or not consistent with the rules governing the use of the public airways, a responsibility for which the FCC and the NTIA have primary responsibility.
Indeed, more than twenty-five years ago, a collaborative effort among the FCC, the NTIA and the FAA was successful in virtually eliminating the problem of FM broadcast interference to aviation receivers. Similar cooperation among the agencies resulted in procedures to assure that cable television systems cannot interfere with air navigation and communications systems. That model of issue-specific cooperation, a model with documented results, should be followed if, in the future, it is determined that an actual interference problem exists. The LMCC urges the FAA to abandon its individual effort to address EMI as beyond the agency’s area of expertise and, instead, to continue its participation in the existing process by which such matters are already regulated.
B. There is No Record Support for the EMI Notice Requirements and EMI Obstruction Standards for Private Land Mobile Radio Spectrum Bands.
The NPRM lists a significant number of bands wherein FAA notice would be required upon the submissions of a broad variety of FCC application filings.[5] Included among them are certain Private Land Mobile Radio (“PLMR”) frequency bands that either overlap or are adjacent to current frequencies that the FAA uses for radio navigation marker beacons, governmental land mobile facilities and terminal and weather radars.[6] The NPRM also proposes that any radiating element operating in the listed PLMR frequency bands must be studied to determine whether potential interference exists to FAA navaids or communications systems.[7]
LMCC believes that there is no factual support for EMI notice requirements and EMI obstruction standards in the PLMR and fixed microwave bands identified in the NPRM in which many of its members operate. The NPRM does not document or even allege that PLMR licensees have caused interference to radio navigation marker beacons, governmental land mobile facilities and terminal and weather radars. It merely speculates that PLMR systems theoretically could cause interference when, in fact, PLMR operations have coexisted peacefully with radio air navigation for decades.
Moreover, even if there were a substantive cause for concern about potential EMI caused by these PLMR systems, LMCC believes that the instant proposed rulemaking is not the appropriate forum for such matters to be addressed. As discussed above, authority over potential interference with government operations is already provided for through the FCC, the expert government agency that coordinates non-Federal Government interference in all electromagnetic frequency bands, including unlicensed services, and on a cooperative basis, through the NTIA and IRAC. LMCC recommends that the FAA take advantage of these agencies and the IRAC coordinating process to resolve any real or perceived interference issues that involve air navigation equipment or air navigation radio communications.
C. The EMI Notice Requirements are Overly Broad.
The NPRM proposes that notice be filed with the FAA if there are changes in authorized frequency, addition of new frequencies, changes in the effective radiated power equal to or greater than three (3) decibels, changes in radiating elements, as well as a number of other licensing parameters. The NPRM, as currently crafted, will operate as a dragnet of nearly every land mobile licensee operating in the NPRM’s listed frequency bands. Not only will the proposed rules be a burden on land mobile licensees, but, as some commenters suggested in their comments concerning the Paperwork Reduction Act, this proposal will result in an avalanche of notice filings for the FAA staff to review and consider.[8] LMCC strongly opposes the blanket notice requirement that would expand exponentially the number of PLMR applicants that would be required to submit notifications to the FAA without any record evidence that the information sought by the FAA is, in fact, needed to protect air safety or the efficient use of the airwaves, and that does not even include a proposed timeframe within which the FAA would be required to confirm the determination that a proposed transmitter poses no hazard to air navigation.[9]
IV. CONCLUSION
The LMCC recommends that the FAA abandon its proposal to manage EMI independent of the FCC/NTIA/IRAC processes already in place, an effort that would impose burdensome filing requirements on PLMR and other parties, including the FAA staff itself, with no countervailing public safety or public interest benefits.
Respectfully submitted,
Land Mobile Communications Council
8484 Westpark Drive, Suite 630
McLean, VA 22102
(703) 528-5115
By: /s/ Ralph Haller______
Ralph Haller
President
September 11, 2006
8
[1] See Safe, Efficient Use and Preservation of the Navigable Airspace, Notice of Proposed Rulemaking, Docket No. FAA-2006-25002, Notice No. 06-06, 71 Fed. Reg. 34028 (June 13, 2006) (“NPRM”).
[2] 49 U.S.C. 44718(a).
[3] NPRM at 34029-30. The NPRM does not explain why the FAA has taken almost twenty years to even propose assuming a responsibility it seemingly believes was imposed on it in 1987.
[4] Id. at 34030.
[5] In its August 11, 2006, comments on the Information Collection Proposal aspect of this proceeding, the FCC already has advised the FAA that it should expect as many as 1,000,000 filings per year for only one of the bands targeted in the NPRM. It must be presumed that the FAA was unaware of the scope of the responsibility it proposed to assume.
[6] NPRM at 34033.
[7] Id. at 34034.
[8] See, e.g., Comments of CTIA – The Wireless Association at 9-10 and Comments of Sprint Nextel Corporation at 4-5.
[9] The NPRM proposes to extend from 30 to 60 days the period before which tower construction can begin or the date an application is submitted for local or state permit, whichever is earlier. The NPRM also makes the FAA’s hazard/no hazard determination effective 40 days from issuance, but fails to specify a timeframe in which the FAA must make a determination. NPRM at 34031-32 and 34037.